14 Jan 09
Decision Impact Statement - XPMX and FCT

The ATO has issued a Decision Impact Statement in relation to the AAT decision in XPMX and FCT [2008] AATA 981. The case concerned whether a notice of non-compliance issued to the trustee of a superannuation fund was validly issued. The AAT held not, because the fund was an SMSF, and the decision was expressed to be based upon the failure of the fund to satisfy conditions in s 42(1) of the SIS Act, which did not apply to SMSFs. The ATO says it disagrees with the decision because the concept of an SMSF was not introduced until after the year of income in question. However, the ATO says that it will not appeal the decision. The ATO says: " In any case, a decision to issue a notice is made under s 40 of the SIS Act, which authorises the giving of notices stating whether a fund is complying or non-complying, rather than under the specific provision under which non-compliance arises."